I remember many years ago, reading a prospectus for my postgraduate degree which offered a high number of optional modules for me to choose from, if I elected to study for their LLM programme, including such wonderfully esoteric subjects as Japanese Trade Law. There were as I recall some 20 options, providing a tempting menu of subjects to draw from. Buried away in the small print, was, I am reasonably sure a bland statement that not all options would run in that particular year. Starting the second semester, myself and my classmates were not amused to find that 20 options had been reduced to 4. Was there a material misrepresentation about the course content? I am reasonably sure at some 25 years remove, that there arguably was.
These days, given that students invariably pay for their courses both at undergraduate and postgraduate level, usually with the benefit of loan finance forming a de facto graduate tax, education is a commodity like any other. As such it is subject to the full rigour of the law, in terms of consumer protection. The Competition and Markets Authority published some years ago, guidance for higher education providers setting out how they expected colleges and universities to approach the marketing and delivery of their courses. You can find it here: HE_providers_-_advice_on_consumer_protection_law. A publication was also made in parallel of a guide for students about their consumer rights: Undergraduate_students_-_your_rights_under_consumer_law. Both documents could do with being usefully updated, not least by reason of the passage into law since then, of the Consumer Rights Act 2015.
Moreover, although the emphasis in the guidance is on the statutory regimes, which provide measures of consumer protection, fundamentally any action against a university or college is usually grounded on misrepresentation or breach of the contract to educate: claims which are fundamentally grounded in the common law. The chief distinction between the two is that whilst a claim for damages for misrepresentation usually results in the tortious measure of damages being sought, a claim for damages for breach of contract will result in the contractual measure of damages being sought.
Financial losses arising from the mis-selling of a course or its mis-delivery, will usually but not necessarily be limited in scope. Wasted courses fees are the most obvious category of loss. Wasted expenditure on books and materials is another category of loss. Claims for accommodation and subsistence simpliciter, will usually be misplaced, because irrespective of what was happening in the class room, students will still have needed to expend money on food and accommodation, though there may be elements of loss where they can point to facts proving that but for the course, their expenditure would be less. There may be scope to claim damages for mental distress, or potentially to bring a personal injury claim if it is foreseeably likely that mental ill health or depression may result.
Formulating claim will usually involve scrutinising the representations which are made by a university or its staff, in course brochures, its website or orally.
Misrepresentation is a familiar concept at law. The text Chitty on Contracts outlines the essential requirements of a misrepresentation as follows:
(1) A statement must be false
It is an obvious requirement of misrepresentation that the statement relied on be false. The question is not solely one of looking at the words used: the question is how the words would be understood by a reasonable person in the factual context.
(2) As statement must be one of fact.
The traditional rule is that a misrepresentation must be a false statement of fact past or present, as distinct from a statement of opinion, a statement of intention or a mere commendatory statement. However, the distinction between a statement of fact on the one hand and a statement of opinion or intention on the other, is not clear cut.
(3) The statement must be made by the other party to the contract
In order to ground relief to a person who has entered into a contract as a result of a misrepresentation, it is normally necessary that the misrepresentation should have been made either by the other party to the contractor by his agent acting within the scope of his authority, or that the other party had notice of the misrepresentation; notice may be actual or constructive.
(4) The representor must have intended the representee to act upon the statement.
In order to be entitled to relief in respect of misrepresentation, the person seeking relief must be able to demonstrate that he is a representee; for, subject to the transmission by operation of law of claims on death, bankruptcy and assignment, the person or persons who in law come within the category of representees are alone entitled to a remedy.
(5) The representation must have induced its target to enter into the contract.
It is essential if the misrepresentation is to have legal effect that it should have operated on the mind of the representee. It follows that if the misrepresentation did not affect the representee’s mind, because he was unaware that it had been made, or because he was not influenced by it, he has no remedy.
(6) The representation need not be the sole cause of the target entering into the contract.Funding such claims can be problematic. In many cases, a student may be well advised to concentrate on an alternative remedy, a complaint to the Office of the Independent Adjudicator for Higher Education whose website can be found here: https://www.oiahe.org.uk/. The OIA has the power to award financial compensation, which may cover much of the same ground that a county court would when awarding damages.
Of course if mental illness has been caused by a breach of contract or negligence, any claim will be a personal injury claim like any other and will benefit from Qualified One Way Costs Shifting (QOCS). In a later post I shall consider the law on disability discrimination in higher education, which will have a particular resonance for students with special educational needs.